Symposium on International Conflict and Security Law: A Research Handbook – Human Rights: Between Universalism and Relativism

[Prof. Dr. Manoj Kumar Sinha is Director at the Indian Law Institute, New Delhi, India.]

The present piece undertakes a review of the contribution by Anicée Van Engeland in the recently published research handbook on International Conflict and Security Law. The research handbook is a comprehensive compilation of articles pertaining to diverse themes around international security. As has been noted in the preface to the edition, despite there being no dearth of material on the chosen topic, full-length compilations on the theme have tended to focus on only a few selected issues such as the use of force, international criminal law, law of armed conflict etc. Thus, the handbook adopts a different approach and includes a wide array of topics. With sixty-four chapters divided sectionally into six parts, the handbook boasts of a vast coverage of relevant themes.

The five themes identified for the sectional division of the chapters are: Protected values, Law, Institutions, Challenges and Crimes. The sixth and the last part features case studies. The first part on ‘protected values’ features contributions on the fundamental values upon which principles of security and welfare are founded, such as those of humanity, rule of law, common heritage of mankind and human rights. The second part discusses legal issues such as the regulation of use of force, the role of UN Security Council, peacekeeping operations, international humanitarian law as well as the legal regulation regime of nuclear, biological and chemical weapons. Part three focusses on institutions, both regional and national and includes chapters on several national as well as international organisations such as European Union, INTERPOL, UNESCO, ASEAN, UNICEF and the International Red Cross. Important contributions are contained in part four which deal with several challenges that threaten international peace and security in the present day. These include the issues of climate change, wildlife poaching, the use of force in pursuance of the right to self-determination, rights of elderly and disabled in the context of armed conflicts and international security, poverty and other such challenges. Next is the section on crimes where the chapters discuss the international war crimes, genocide, human trafficking, organised crimes and also religious extremism. The collection also contains a chapter on ecocide by military highlighting the loss of natural environment that is often caused by military activities. Finally, the concluding part contains case studies from Cambodia, Myanmar, Cyprus, Yugoslavia, Northern Ireland and other sensitive issues such as of sexual abuse by religious authorities, religiously motivated conflicts and Jihad. The editors of the present edition deserve applause for putting together an almost encyclopaedic work, which shall greatly aid research in the field of international conflict and security law.

The review in the present piece is confined to the chapter included in the very first part of the book, on the subject matter of human rights and the universalism and relativism debate. The chapter has been contributed by Anicée Van Engeland. Placed in the first part, alongside contributions on the fundamental values that provide foundation for the international peace and security framework, the chapter takes up one among the most intractable and contentious puzzles in the field of public international law.

The paper brings to the fore the universalism-relativism dichotomy in the international human rights discourse and its potential ramifications for international peace and security. It has attempted to raise a significant concern about the threat that relativist approaches may pose by their denial of the universality of human rights. The link between respect and implementation of human rights and peace and security lies at the heart of discussion. Believing that promoting human rights promotes security which in turn promotes human rights, leads one to the premise that adherence by states to another set of rights or values based on their own socio-cultural-religious traditions, could hamper the prospect of international peace. The universalism-relativism debate has been a subject matter of discussion since long and has long divided scholars ideologically. However, it is this premise that the dichotomy could potentially threaten prospects of international peace and security that has been highlighted in the paper, which makes it a relevant and valuable contribution.

The article rightly identifies the distinction between ‘internationality of human rights’ and their ‘universality’ and points out that though the first may not be disputed at all, claims to universality are difficult to defend in the wake of the presence of several alternative, regional, human rights approaches. Drawing that distinction is crucial since it is easy to falsely claim universality on the basis of the widespread acceptance of the international bill of rights. However, one may not lose sight of the reservations that are often made by the nation states, in order to protect their religious/social customs and practices.

Engeland presents a balanced view of the criticism which is often levelled against the universalist approach. As has been rightly noted by the author, the Universal Declaration of Human Rights (UDHR) has been alleged by some relativists as a ‘Euro-centric’, ‘neo-liberal’ endeavour, which is ignorant of the cultural specificities and the particular social context. They staunchly criticise the interventions that have been made in situations such as in Afghanistan on the pretext of protection of the civilians from human right violations at the hands of their governments. These examples bring the linkages between human rights and security at the centre stage. Further, they are critical of the mission undertaken by states in the garb of the responsibility to protect other states, which they describe as emerging from a ‘liberal and western understanding’ and as an ostensible ‘ground to go to war’.

The paper also focuses on the liberalism-human rights association and highlights how human rights have been rooted in the liberal paradigm. Universalist approaches uphold the proposition that the institution of liberalism, human rights and democracy are firmly anchored together. The case of Islamic law countries has been discussed by the author to emphasise the differences and conflicts that often arise when attempts at imposition of a universal human rights model are made in theocracies where the national constitution makes a commitment to both the religious law and the international human rights regime. By illuminating such examples, the paper makes a strong point. The current human rights discourse is also argued to be reflective of a superiority complex that the West has, when it attempts to reform the rest of the world, erasing cultural diversity.

The last part of the paper discusses the strategies for reconciliation of the universalism and relativism approaches. It mentions about the strategies that have been adopted for accommodation of universalism in the relativist approaches as well as the acknowledgement and accommodation of relativist values in the universalism discourse. Since major conflicts often emerge between religious values and human rights on issues such as the rights of women, the strategies often aim at reaching a balance between interpretation of scriptures and the universal human rights, looking for common values underlying both. Such balancing, Engeland notes, may involve a reimagining and rethinking of the relationship between natural law and divine law by relativists.

Another proposed way forward is the recognition in the human rights discourse of the cultural diversity and embracing of multiculturalism and a ‘margin of appreciation’. The concept of margin of appreciation allows nation states the discretion to navigate through the differences. However, Engeland is quick to point out that with certain religious precepts like dhimmitude in Islam which restrict the guarantee of rights only to the followers of Islam, (thereby differentially treating non-muslims), would automatically come in conflict with the principle of non-discrimination, which is otherwise considered to be of universal application. Such kind of a ‘multicultural relativism’ of working on similarities and navigating differences through the margin of appreciation would again leave the question of sufficient protection of vulnerable population from deprivation of their human rights wide open. Thus, doubts remain as to the viability of this approach.

The section ends with a discussion of the proposal to reimagine and reconstruct universalism in a ‘post-colonial world’ through adoption of a bottom-up approach. The bottom up approach insists on participation of all societies and cultures in the reconstruction of the whole corpus of human rights. Only then could it lay claim to universality. Engeland ends with the ideas that have been put forward by scholars like Mutua, McNeilly and Butler, suggesting that the ‘new universality’ must be a constant space of contest, rather than a static discourse. Linking it back to the question that Engeland had proposed in the major premise of her contribution, she concludes, “a new principle of universality will lead to a re-definition of international priorities in the domain of peace and security.” Inclusion of post-colonial approaches and a thorough questioning of the liberal pursuit/aim of human rights would be central to the development of this new universalism.

Engeland’s contribution is noteworthy since it displays the comprehension of the intractability of the issue and thus resists the urge to offer any magical solution to the same. Rather through an open proposal to reframe the debate on universality, it attempts to initiate a new understanding of principles of liberal peace and security, thus provoking new lines of inquiry. It is hoped that the same shall stimulate development of new thought in the field.